Viscariello v Legal Practitioners Conduct Board
[2014] SASC 53
•16 April 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
VISCARIELLO v LEGAL PRACTITIONERS CONDUCT BOARD
[2014] SASC 53
Reasons for Decision of The Honourable Justice Nicholson
16 April 2014
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY
The plaintiff/applicant has filed proceedings seeking judicial review. He is seeking, inter alia, prerogative relief by way of an order in the nature of mandamus directed at the Legal Practitioners Conduct Board. The plaintiff alleges that notwithstanding the receipt of various complaints concerning certain legal practitioners, the Board has refused and failed to make an investigation into their conduct as purportedly required pursuant to s76(1a)(b) of the Legal Practitioners Act 1981. In accordance with Supreme Court Civil Rules (2006) rule 200(1) such an application for judicial review may be commenced but cannot proceed further in the Court without the Court’s permission. The plaintiff filed an interlocutory application seeking permission. Ordinarily, such permission applications are heard ex parte. However, in the circumstances of this matter, permission was given to the Board to be heard on the permission application.
Held:
(1) The applicant has demonstrated a reasonable basis upon which he might establish a right to judicial review.
(2) Permission to proceed granted.
Supreme Court Civil Rules 2006 rule 200; Legal Practitioners Act 1981 s68, s74, s76, s82; Legal Practitioners (Miscellaneous) Amendment Act 2013 (SA); Judicial Review of Administrative Action 3rd ed, Lawbook Co 2004, Mark Aronson, Bruce Dyer and Matthew Groves, referred to.
Gawler Region Community Forum v Minister for Urban Development and Planning (2001) SASC 76; Ferdinand v Attorney-General of South Australia (2007) SASC 53; Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1; Viscariello v Livesey & Anor [2013] SASC 99; Viscariello v Livesey & Anor [2013] SASC 198; Viscariello v Livesey & Anor [2014] SASCFC 40; Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82; Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte applicants S134/2002 (2003) 211 CLR 441; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; Heath v Adelaide Hills Council [2000] SASC 406; Ferdinands v District Court of South Australia [2010] SASC 265; Keogh v Medical Board of SA [2006] SASC 285, considered.
VISCARIELLO v LEGAL PRACTITIONERS CONDUCT BOARD
[2014] SASC 53Civil
NICHOLSON J.
Introduction
In this matter the plaintiff has filed a summons and statement of claim seeking the following orders against the Legal Practitioners Conduct Board (variously referred to hereinafter as the Board and the respondent[1]):
9.[2] An Order pursuant to Rule 199(2) of the Supreme Court Rules compelling the Defendant to perform its public duty to make an inquiry into the conduct of Mr Livesey QC and Ms Flaherty and the Other Legal Practitioners the subject matter of the Complaints to the Defendant pursuant to s76 (1a) (b) of the [Legal Practitioners Act 1981] (mandamus).
10.An Order compelling the Defendant to seek the written consent of the Attorney General pursuant to s82 (2a) of the [Legal Practitioners Act 1981] entitling the Defendant to lay charges against Mr Livesey QC and Ms Flaherty the Other Legal Practitioners notwithstanding that the conduct the subject matter of any proposed Charges may have occurred after more than five (5) years.[3]
11.To the extent necessary, the Plaintiff seeks an order extending the period in which he is able to bring this claim pursuant to s48 of the Limitation of Actions Act (SA) and the inherent jurisdiction of this Honourable Court.
12.Such further or other order as this Honourable Court sees fit; and
13.Costs.
[1] The Board has not yet been formally served with the proceedings but it is convenient to refer to it in these reasons as the respondent.
[2] No other orders are sought; the paragraph numbering in the prayer for relief is simply a continuation of the paragraph numbering used in the statement of claim.
[3] It would seem that the occasion for such an order could only arise if the Board were first to conduct an investigation and determine, as a result thereof, that charges should be laid and then refuse to approach the Attorney-General for permission. As such, it may be premature to seek in these proceedings this prayer for relief.
Pursuant to rule 200 of the Supreme Court Civil Rules 2006 a plaintiff who claims to be entitled to an order for judicial review (the order sought in 9 above) may commence the action but the plaintiff cannot proceed with the action without the Court’s permission.
By interlocutory application the plaintiff (applicant) has sought permission to proceed with an action for judicial review against the Board, as particularised in the statement of claim. In support of the interlocutory application for permission, the applicant has filed his own affidavit, sworn on 18 December 2013.
Exhibited to the affidavit is a substantial body of correspondence between a former domestic partner of the applicant or the applicant, on the one hand, and the respondent on the other. The applicant maintains that this correspondence evidences complaints against legal practitioners, brought by the applicant to the respondent’s attention, and an ongoing refusal by the respondent to investigate these complaints.
The question of permission came before Blue J in the chamber list. Blue J arranged with the applicant that the respondent would be notified of the proposed proceedings so that it might consider whether it wished to apply for permission to be heard on the application for permission to proceed. On 7 February 2014, the respondent made before me such an application which, after hearing brief argument, I granted. I then heard over two part days the applicant’s, now contested, application for permission to proceed with his judicial review action.
The usual approach to such a permission application
An application for permission to proceed with judicial review is governed by rule 200 of the Supreme Court Civil Rules, 2006. According to sub-rule 200(4) the Court may grant permission if the Court is satisfied that there is a reasonable basis upon which an applicant might establish a right to review. In undertaking this exercise the Court is to have regard to the locus standi of the applicant, the nature of the decision challenged (or, in the case of an application for an order in the nature of mandamus, the nature of the statutory or other duty not complied with), the person to whom the order is to be directed and the justiciability of the issue.[4] Ordinarily, permission will not be granted unless the court is satisfied that all persons who may be adversely affected by the decision are to be joined as defendants.
[4] See Ferdinand v Attorney-General of South Australia (2007) SASC 53.
I accept for present purposes that the phrase ‘reasonable basis’, where used in the rule, imports a notion no more burdensome for an applicant than that an arguable case or a prima facie case is to be demonstrated. As Judge Lunn pointed out in Gawler Region Community Forum v Minister for Urban Development and Planning,[5] the common law required an applicant for judicial review to obtain an order nisi before being able to serve a defendant and the test for granting such an order nisi was the showing of a prima facie matter of substance which was reasonably arguable and which was fit for the consideration of the Full Court.
[5] (2001) SASC 76.
I agree with Judge Lunn in Gawler Region that sub-rule 200(4) poses a low threshold for a plaintiff to cross and that the approach of the Court should be analogous to that adopted when considering whether or not a defendant’s application for summary judgment against a plaintiff should be granted.
According to Ceneavenue Pty Ltd v Martin,[6] summary judgment is not to be granted against a plaintiff unless, after exercising extreme care, the Court is satisfied that there was no real question to be tried and that the plaintiff did not have a reasonable, as distinct from a fanciful, prospect of success. As with summary judgment matters, it should only be in clear cases that permission to proceed with an application for judicial review is refused.
[6] (2008) 106 SASR 1 at 21.
The applicant’s claim
In general terms, the applicant complains about aspects of the conduct of Mr Mark Livesey, a member of the senior bar in Adelaide, Ms Tyneil Flaherty and a number of other solicitors, all at one time members of the firm Minter Ellison and Mr Matthew Selley, a partner of Iles Selley Lawyers, in connection with various litigation matters involving either the applicant or a former associate of his, Ms Tania Hamilton-Smith. These various litigation matters initially arose out of the insolvent administration by a registered liquidator, Mr Peter Macks, of two companies with respect to each of which the applicant was a director and major shareholder. Ms Hamilton-Smith was an employee of the companies and, at an earlier time, romantically involved with the applicant.
Under the Legal Practitioners Act 1981 (the Act) as it presently stands, the Legal Practitioners Conduct Board (formerly known as the Legal Practitioners Complaints Committee) has been established as a body corporate.[7] The functions of the Board are as set out in s74 of the Act. Those functions include: “to investigate suspected unprofessional or unsatisfactory conduct by legal practitioners” and “following an investigation, to take [any of the actions authorised by the Act]”.[8]
[7] Legal Practitioners Act 1981 s68(1).
[8] Section 74(1)(a) and (b). In accordance with the provisions of the Legal Practitioners (Miscellaneous) Amendment Act 2013 (No 44 of 2013) this function of the Board will, from 1 July 2014, pass to a Legal Profession Conduct Commissioner. There are transitional provisions designed to allow for an orderly transfer and continuation of proceedings before the Board that will not have been finalised by that date. The applicant is concerned that Mr Greg May, one of the practitioners about whom the applicant has complained and into whose conduct he says the Board must investigate, either has been or is likely to be appointed as the first Legal Profession Conduct Commissioner. The applicant is concerned that if the relief he seeks against the Board is not obtained by the time Mr May takes over its functions, a conflict of interest will arise. This (or any other matter) that potentially might emerge as a result of this anticipated transitional process, can only be dealt with if and when it does arise.
Section 76, as it now stands and insofar as presently relevant, provides as follows.
(1)The Board may, of its own motion, make an investigation into the conduct of a legal practitioner or former legal practitioner who the Board has reasonable cause to suspect has been guilty of unprofessional or unsatisfactory conduct.
(1a)The Board must make an investigation into the conduct of a legal practitioner or former legal practitioner where –
(a) the Board has been directed to make the enquiry by the Attorney-General or the Society; or
(b) a complaint has been received in relation to the conduct of the legal practitioner or former legal practitioner.
The applicant relies on s76(1a)(b) and asserts that the Board has received a complaint or complaints in relation to the conduct of each of a number of legal practitioners, being complaints made to the Board by the applicant himself and by Ms Hamilton-Smith. The applicant further asserts that, in breach of s76(1a), the Board has failed to act upon those complaints. Specifically, the applicant maintains that the Board has no choice, having received the complaints, but to enter upon an investigation into the conduct of each of the legal practitioners concerned. According to the applicant, so much is plain from the wording of s76(1a)(b) - “the Board must make an investigation… where a complaint has been received…”.
The applicant’s statement of claim, pursuant to which he seeks judicial review of the Board’s alleged failure to perform its public duty in this respect, is in beguilingly straightforward terms. Its substantive content can be summarised as follows.
(i)The applicant was at all material times a complainant for the purposes of s76(1a)(b) of the Act.
(ii)Pursuant to s76(1a)(b) of the Act, the Board must make an investigation into the conduct of a legal practitioner where a complaint has been received in relation to the conduct of the legal practitioner.
(iii)From 13 January 2006, Ms Hamilton-Smith and the applicant in his own right and on behalf of Ms Hamilton-Smith made complaints or allegations to the Board in relation to and in connection with the conduct of:
(a)Mr Mark Livesey QC;
(b)Ms Tyniel Flaherty formerly of Minter Ellison Lawyers; and
(c)other legal practitioners referred to in the correspondence exhibited to the applicant’s affidavit filed in support of his application for judicial review.
(iv)At no time has the Board determined (in accordance with the power available to it under s76(1b) of the Act) not to commence and continue with any such investigation or investigations on the basis that a complaint received is frivolous or vexatious or on the basis that the Board is satisfied that the subject matter of a complaint has been resolved prior to commencement or completion of any investigation.
(v)The Board has failed or refused or declined to enquire into the conduct of either Mr Livesey, Ms Flaherty or any of the other legal practitioners identified in the correspondence exhibited to the applicant’s affidavit.
(vi)The applicant, in the circumstances, has no other legal remedy available to him to compel the Board to carry out its statutory obligation in relevant respects other than to seek an order for judicial review.
The written materials before the Court on the hearing of the application, in addition to the summons, statement of claim, interlocutory application and the applicant’s affidavit, included the following:
(i)Applicant’s Outline of Argument dated 12 February 2014;
(ii)Document headed “Res Judicata and Interlocutory Proceedings” provided by the applicant during the hearing;
(iii)Table (14pp) headed “History and chronology of complaints/allegations made by Viscariello to the defendant in his own right and letters complaining about the failure/refusal of the [Board] to investigate the complaints” provided by the applicant during the hearing;
(iv)Copy unpublished ruling by Kourakis CJ in Viscariello v Macks (No 165/2006) dated 16 August 2012, provided by the applicant during the hearing;
(v)Copy letter dated 2 April 2012 and enclosures from the Board to the applicant concerning a complaint made against the applicant by a Mr DF;
(vi)Document headed “Contentions of the [Board] provided by counsel for the respondent during the hearing; and
(vii)Document headed “Chronology of Documents” provided by counsel for the respondent during the hearing.
I have described the statement of claim as being in beguilingly straightforward terms because the only way of identifying the nature and content of the complaints, allegedly made by the applicant to the Board, and the only way of identifying the legal practitioners, in addition to Mr Livesey and Ms Flaherty, the subject of the complaints, is by trawling through and analysing the contents of some 280 or so pages of correspondence exhibited to the applicant’s affidavit. In the event that permission to proceed were to be granted, there is potential for the manner by which the applicant has pleaded his claim to give rise to interlocutory challenges. If such are raised, they will need to be resolved before any hearing of the claim could proceed.
The correspondence starts with a letter on 13 January 2006 from Ms Hamilton-Smith to the Board (page 11 of the booklet containing the combined affidavit and exhibited correspondence). Thereafter, till 19 December 2006 (a letter from the Board to Ms Hamilton-Smith to be found at pages 50-51) all of the correspondence is between representatives of the Board and Ms Hamilton-Smith. It is common ground that, as of today and for some time prior to today, the applicant is no longer in a personal relationship with Ms Hamilton-Smith and no longer acts either as her solicitor or as her agent in any respect. Having reviewed this first 50 pages or so of the correspondence, I am satisfied that any complaints made about practitioners within the body of correspondence were complaints made by Ms Hamilton-Smith or on her behalf. I am also satisfied that any such complaints, by and large, were appropriately dealt with by the Board.[9]
[9] Correspondence from the Board to Ms Hamilton-Smith in December 2006 is to the effect that as they had not heard from her in response to a significant number of Board communications seeking further particularisation and verification of Ms Hamilton-Smith’s allegations, the Board had closed its files. There has been no complaint about or challenge to that course of action by Ms Hamilton-Smith.
I leave aside the question of whether or not this correspondence involving Ms Hamilton-Smith might serve some evidentiary function in the event that any complaints made by the applicant were to become the subject of judicial review. However, I am satisfied that this earlier body of correspondence does not, of itself, represent a complaint or complaints made by the applicant to the Board. I am also satisfied that the applicant will only have standing to seek judicial review with respect to complaints raised by him or someone else for whom he has authority to act as solicitor or, possibly, as agent. In the circumstances, if the applicant is to succeed with an application for judicial review of the Board’s alleged refusal to enquire into or investigate a complaint or complaints, any such complaint or complaints will need to have been made by him and not by or on behalf of Ms Hamilton-Smith.
The first correspondence that emanates from the applicant is his letter of 23 March 2007 directed to the Board (page 52 and in particular at page 61 and following). Whilst in that letter (at the bottom of page 61) the applicant appears to be attempting to reinstate previous complaints made by Ms Hamilton-Smith, it is also reasonably arguable that the applicant is asserting his own complaint against the following named legal practitioners (quoting directly from the letter):
Ms Riach, Ms Flaherty, Mr Douglas of Minter Ellison Lawyers and Mr Livesey of Counsel and… the following practitioners employed at Minter Ellison Lawyers, namely, Alex Mezhvinsky, Cameron Locket, Caroline Scalzi, Rebecca McPharline, Andrew Fellows, Stephen Phillips, Debrah Mercurio, Ray Mansueto, and Adam Bannister.
When pressed during argument, the applicant confirmed that this group of practitioners formed the first tranch of practitioners about whom the applicant had made and was maintaining a complaint (the “first tranch of practitioners”).[10]
[10] See transcript for 12 February 2014 at p17 and see p1 of the table headed “History and chronology of complaints/allegations made by Viscariello to the defendant in his own right…” handed up by the applicant during the hearing on 14 February 2014.
In his letter of 23 March 2007 (at pages 61-62) the applicant also sets out nine allegations of professional misconduct asserted to have been engaged in by “all of [these] legal practitioners”. In addition, the applicant identifies a number of documents (essentially litigation generated) which he maintains support his allegations. I do not stay in these reasons to set out the nature of the many allegations of misconduct, each of which is said to be directed at “all of” the legal practitioners, nor the documentary evidence said to support them. However, I observe that, in subsequent correspondence, the Board did request further particularity as to the generalised nature of the allegations and as to which were said to be directed against each or all of the named practitioners. Again, this issue may become the subject of interlocutory challenge. In any event, it may ultimately be relevant to the question of whether any complaint, as made, to the Board was sufficiently formulated so as to require (by force of the statute) the making of an investigation.
The applicant concluded this aspect of his letter of 23 March 2007 to the Board in the following terms (page 63).
I trust that the [Board] will investigate the above matters and pursue these practitioners with the same vigour and veracity with which they have pursued me.
. . . .
I understand the seriousness of the allegations made and the importance of ensuring that the matters put before the Board are not frivolous or vexatious. To this end I have an appointment with [named senior counsel]… to generally discuss the complaints that I am making to the Board against these practitioners.
I also ask that I be given the opportunity to be heard and make further oral submissions in relation to these matters including in relation to the complaints set out herein made by Ms Hamilton-Smith and I.
The Board, by letter dated 8 May 2007, responded to the applicant’s letter of 23 March 2007. That response dealt with a number of matters and included the following.
You state in your letter of 23 March 2007 that Ms Hamilton-Smith wishes to reinstate complaints against Ms Natasha Riach, Ms Tyneil Flaherty and Mr Mark Livesey. Those files were closed in November 2006 pursuant to the authority delegated by the Board to the Director.
If you or Ms Hamilton-Smith have fresh allegations to make or further information to provide with respect to allegations of unsatisfactory or unprofessional conduct on the part of the above named practitioners, then I would be pleased to receive your further advice with respect of each named practitioner, setting out the new or further information.
Once further information is received the files will be considered to assess whether it is appropriate to reopen them.
In your letter of 23 March 2007 I note that you indicate that you wish to make fresh complaint against nine named solicitors all of whom are employed (or were at the relevant time) by Minter Ellison. It appears that this is a fresh joint complaint by yourself and Ms Tania Hamilton-Smith.
I note that you list a number of points as allegations of misconduct, however you do not specify which conduct is alleged against which practitioner. The general nature of the allegations is not specific enough to allow us to commence separate investigations against the named practitioners.
Can you please provide separate detail as against each separately named practitioner so that we can further assess the fresh complaints. If those fresh complaints are to be also made by Ms Hamilton-Smith I would be pleased if she would co-sign the correspondence so that her position is clear to the Board.
It would appear that at or about this time, the applicant became preoccupied with other matters and little of moment (insofar as correspondence concerning these purported complaints is concerned) took place between the applicant and the Board for almost four years. In February 2011 the applicant resumed his written communications with the Board and thereafter, until October 2013, a significant number of written communications passed between the applicant and various representatives of the Board.
In addition to his purported complaints concerning the first tranch of practitioners, the applicant maintains that he has also lodged complaints with the Board about the conduct of members of the senior management at Minter Ellison, including Mr Nigel McBride and Mr Greg May. In this respect the applicant, during submissions, drew the Court’s attention to his letter of 24 September 2013 addressed to the Board (page 229). In that letter, the allegation or complaint with respect to these two persons was put in the following terms (page 230).
Further the documents show that there are now reasonable grounds to make enquiries with the management at Minter Ellison Lawyers at the very highest level including the Board level. It is apparent on the evidence given by Mr Macks at trial that these joint venture/profit sharing arrangements between insolvency practitioners and their lawyers are common place and appears to be widespread in the industry. It appears that the decision to cover up these arrangements and the unprofessional conduct as I have alleged was sanctioned by senior management at Minter Ellison Lawyers including by Mr Nigel McBride and Mr Greg May.
The applicant also maintains that he has made a complaint to the Board concerning the solicitor, Mr Matthew Selley, of the firm Iles Selley Lawyers. On 24 August 2011, the applicant wrote to Iles Selley Lawyers (page 175) putting them on notice of various concerns he had relating to Mr Livesey being represented by Mr Selley. The letter sets out in some detail the applicant’s concerns. By email dated 25 August 2011, directed to the Board, the applicant provided the Board with, inter alia, a copy of this correspondence addressed to Iles Selley. The applicant maintains that this constituted a complaint, about the conduct of Mr Selley, made by him to the Board.
During the second day of the hearing, the applicant provided to the Court a 14 page table which contained, inter alia, a history and chronology of complaints/allegations made by the applicant to the respondent in his own right. The table records, by reference to page numbers of the applicant’s affidavit, the correspondence that he asserts identifies and otherwise particularises his various complaints, including as follows: concerning the first tranch of practitioners – pages 61-63, 74-77, 90-92, 104-105, 193-195, 202-203, 205-206, 212-213, 216-217, 223-228, 229-233 and 237-238; concerning Mr May – 79-80, 90-92, 193-195, 205-206, 212-213, 216-217, 223-228, 229-233 and 237-238; concerning Mr McBride – 229-233 and 237-238; and concerning Mr Selley – 173, 175-179 and 181-183.
The respondent’s submissions
Senior counsel for the Board made a number of submissions in opposition to the application for permission to proceed with the claim for judicial review. Without meaning any disrespect to the detailed nature of some of these submissions, as provided during argument, the main heads of opposition can be summarised as follows.
First, the material relied upon in support of the claim for judicial review does not establish that the applicant was a “complainant” at the times of any alleged refusal or failure by the Board to act.
Second, the correspondence relied upon by the applicant does not establish any actual or constructive refusal by the Board to investigate any complaints raised by the applicant. In essence, the Board submits that the time for it to make an investigation into the conduct of any of the legal practitioners identified in the correspondence, as may ultimately be required by s76 of the Act, has not yet arrived.
To this point, the Board has been engaged in quite extensive correspondence with the applicant with a view to having the applicant properly and fairly identify and particularise the nature of his complaints against each of the practitioners. The Board has taken the view that, until it were to be properly on notice in this respect, it would be premature to involve the practitioners concerned in investigations. It is submitted that at no time has the Board refused or failed (even constructively) to perform any duty that may be imposed upon it by s76 of the Act.
I interpolate here, that it would seem that a close analysis of the terms of s76 including, for example, as to what will constitute a “complaint” and what would be required of the Board in order for it to commence to “make an investigation”, will need to be undertaken. For example, it might be put on behalf of the Board that, by its very engagement with the applicant through the correspondence seeking a better understanding of each complaint, it has commenced the task imposed upon it to “make an investigation”. An assumption underlying the applicant’s position, as evident from his correspondence and his submissions during the permission argument, is that the Board cannot be said to have commenced to make an investigation, as required by s76, until it has taken the step of writing a letter to the practitioner concerned seeking his or her response to a complaint as lodged. This may or may not be so. These matters will raise difficult issues of statutory construction and application to the facts.
The Board also submits (and has indicated in its correspondence) that it is entitled, in effect, to hold any complaint against Mr Livesey and Ms Flaherty in abeyance and not to proceed with any investigation whilst charges (in broadly similar terms to the complaint made) laid by the applicant before the Legal Practitioners Disciplinary Tribunal remain unresolved. Accordingly, the Board has submitted that it has not improperly refused to make an investigation into the conduct of either Mr Livesey or Ms Flaherty and that it would be, at present, premature, improper or inappropriate for it to do so. If this submission ultimately were to be upheld, it may be that even if the Board’s conduct, in this respect, were found to be tantamount to a constructive refusal to exercise its public duty, the granting of an order in the nature of mandamus would lack utility. In order to understand the Board’s position here, some further background to this issue needs to be set out.
On 7 June 2012, the applicant laid two sets of charges of unprofessional conduct in the Legal Practitioners Disciplinary Tribunal against respectively, Mr Livesey and Ms Flaherty. In so doing, the applicant purported to rely on s82(2)(d) of the Legal Practitioners Act 1981. Whilst the two sets of charges were not identical they did have much in common. The applicant alleged, in essence, that both these legal practitioners had misled or attempted to mislead a court by making statements or allowing evidence to be adduced which each knew to be false or incomplete. The charges, as laid, reflected many of the concerns relied on by the applicant in his “complaints” to the Board.
The Legal Practitioners Disciplinary Tribunal dismissed the charges on the basis that, in its view, the applicant lacked standing to bring them. An appeal to a single judge of this Court was dismissed on 27 June 2013.[11]
[11] Viscariello v Livesey & Anor [2013] SASC 99 (White J).
On 18 July 2013, the applicant appealed to the Full Court against the judgment and orders of the single judge. On 19 December 2013, an application by Mr Livesey that the appeal be summarily dismissed was refused but applications by both respondents to the appeal for security for costs were allowed. Another judge of this Court ordered that further prosecution of the applicant’s appeal be stayed until he has paid into the Court the sum of $40,000 to secure the respondents’ costs of the appeal.[12] On 14 April 2014, the applicant’s application for permission to appeal from the interlocutory order staying the substantive appeal, pending payment into Court of security for costs, was refused.[13]
[12] Viscariello v Livesey & Anor [2013] SASC 198 (Kelly J).
[13] Viscariello v Livesey & Anor [2014] SASCFC 40.
The applicant’s complaints of alleged unprofessional conduct against both Mr Livesey and Ms Flaherty, as particularised in the two sets of charges he has laid in the Legal Practitioners Disciplinary Tribunal, have not yet been considered on the merits. In the event that the stay of the appeal were to be lifted[14] and the appeal to the Full Court prosecuted by the applicant successfully, it is conceivable that an order would be obtained by the applicant to the effect that the Tribunal was obliged to hear the two sets of charges, as laid, on their merits and, if so, it can be expected that it would proceed to do so.
[14] Presumably this will only occur now if the applicant is able to and does satisfy the security for costs order.
The respondent has submitted that, whilst there remains the potential for the applicant’s complaints, at least insofar as they concern Mr Livesey and Ms Flaherty, to be heard and determined on their merits by the Tribunal, any enquiry by the Legal Practitioners Conduct Board into the same complaints, running in parallel, would create the potential for a conflict in outcomes as between the Tribunal and the Board. The respondent also submits that by continuing to conduct the parallel proceedings, the applicant is engaging in an abuse of process. Furthermore, whilst this potential remains there may be a lack of utility to any order directed at the Board that it should make an investigation.
It cannot be said that the Board’s submissions in opposition to the application are without merit. However, whether or not they will carry the day is likely to be determined only on a full hearing of this matter. In my view, they are not such as should prevent the application for judicial review from proceeding further in this Court.
Consideration and resolution of the application
The order sought by the applicant by way of judicial review is in the nature of mandamus. The prerogative writ of mandamus, or an order in the nature of that ancient writ, is a judicial command addressed to and compelling the respondent to perform a public duty. The authors of the third edition of Judicial Review of Administrative Action[15] have compendiously described the circumstances which might ground an order in the nature of mandamus, as follows:
[M]andamus may be granted to an applicant of sufficient standing who proves that the respondent has refused to comply with the applicant’s demand that the respondent perform a duty of a public nature, and that there is no other equally convenient, beneficial and effectual remedy available to the applicant.
[15] Judicial Review of Administrative Action 3rd ed, Lawbook Co 2004, Mark Aronson, Bruce Dyer and Matthew Groves at p720.
It is reasonably arguable that s76(1a)(b) imposes an obligation on the Board, by way of a public duty, to make an investigation into the conduct of a legal practitioner about whom a complaint has been received in relation to the conduct of that legal practitioner. It is also reasonably arguable that once information has been directed to the attention of the Board which information satisfies the requirement of a “complaint” under s76, the Board has no choice but to “make an investigation” unless the circumstances envisaged by s76(1b) apply. That sub-section, which has not been invoked by the Board,[16] provides:
Despite sub-section (1a), the Board may determine not to commence or continue an investigation that would otherwise be required as a result of receipt of a complaint if it is apparent to the Board that the complaint is frivolous or vexatious or if the Board is satisfied that the subject matter of the complaint has been resolved prior to commencement or completion of an investigation.
[16] At least insofar as any complaint by the applicant, as compared with Ms Hamilton-Smith, is concerned.
It may be that only a certain category of persons have the standing necessary to make a “complaint” pursuant to s76, although there is nothing expressly stated in the legislation to that effect. Indeed, s76 does not expressly identify the need for any person to be involved in the making of a complaint, although ordinarily one would expect that a complaint must come from someone. Section 76 requires the Board to make an investigation where “a complaint has been received…”. In any event, I am satisfied that it is reasonably arguable that the applicant has such standing as may be sufficient to invoke the complaint procedure under s76. It may be a separate question whether the applicant (having standing to make a complaint) also has standing to pursue his complaint by the institution of judicial review proceedings. It was not suggested otherwise by the respondent and, in my view, it is at least reasonably arguable that the applicant has this standing as well.
I have reviewed the statement of claim filed by the applicant together with the applicant’s affidavit in support, in the context of the written and oral submissions provided by the parties. I am satisfied it is reasonably arguable that:
(i)the Board has received a complaint in relation to each of the legal practitioners earlier identified;
(ii)each complaint is of a nature that falls within s76(1a)(b); such that
(iii)the Board must make an investigation into the conduct of each such legal practitioner, in accordance with the obligation imposed on it by s76(1a) of the Act.
On my review of the correspondence, I am also of the view that it is reasonably arguable that the Board has refused either actually or constructively to comply with the applicant’s demand that it perform its public duty to make an investigation into the conduct of each of the practitioners about whom a complaint has purportedly been made. I am also satisfied that it is reasonably arguable that the applicant has no other equally convenient, beneficial and effectual remedy open to him other than to seek judicial review and an order in the nature of mandamus.
Of course, should the matter proceed to a full hearing on the merits, each of these issues, together with others, will need to be fully argued and resolved. For example, it may be that, after all admissible and relevant evidence comes before the Court and full argument is heard, the information that has been provided by the applicant to the Board with respect to one or more of the legal practitioners in question will not, on its proper analysis, be found to qualify as a “complaint” within the meaning of that term as used in s76, so as to trigger any obligation on the Board pursuant to s76. Perhaps, upon a full analysis of the Board’s responses to a particular “complaint”, it may be found that the Board has embarked upon “an investigation” or has not, as yet, refused or failed (constructively or otherwise) to do so.
Even if the applicant, in due course, were to make out the necessary basis for an order in the nature of mandamus, such an order is still discretionary. The Court has a broad discretion to deny an order in the nature of mandamus to an applicant who has otherwise made out a good case.[17] Such discretionary considerations can include questions of delay, the history of the conduct of the parties, an absence of a real and substantial injustice or any real merit in the applicant’s case and the question of utility.[18]
[17] Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at 136; Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte applicants S134/2002 (2003) 211 CLR 441 at 472; and Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [33]; and see generally the discussion in Aronson, Dyer and Groves, Judicial Review of Administrative Action, 3rd ed at 736ff.
[18] This is not meant to be an exhaustive list of discretionary considerations.
The fact that there are still parallel proceedings on foot before the Tribunal (albeit, subject to the applicant first successfully prosecuting a stayed appeal) may give rise to considerations of utility, at least insofar as the complaints concerning Mr Livesey and Ms Flaherty are concerned.
The applicant also may have a time limitation problem. The applicant has recognised this by including paragraph 11 in the statement of claim which seeks an order, to the extent necessary, for an extension of time within which to bring his claim. Sub-rule 200(2) provides:
An action for judicial review must be commenced as soon as practicable after the date when the grounds for the review arose and, in any event, within six months after that date.
In order to determine whether the applicant does have a time limitation problem and, if so, the extent of that problem, it will be necessary to determine with respect to each separate complaint relied upon, the time when the grounds for judicial review by way of an order in the nature of mandamus first arose. It would seem that this will require findings to be made as to when it can be said that the Board first failed in its duty to make an investigation into the conduct of a particular legal practitioner (if proved). If any such first failure took place more than six months prior to 19 December 2013 (the date on which the statement of claim was filed) the applicant’s claim for relief against the particular practitioner concerned might be found to be out of time.
There is power in the Court to extend the six month limitation period provided for in sub-rule 200(2).[19] The decision whether or not to grant an extension of time, in a particular case, is a discretionary one. Ordinarily, the four factors to be considered when exercising the discretion will be the length of the delay, the reason for the delay, the prospects of success and any prejudice suffered by the respondent.[20]
[19] Heath v Adelaide Hills Council [2000] SASC 406.
[20] Ferdinands v District Court of South Australia [2010] SASC 265.
The Court has not heard evidence or submissions directly concerning these matters and it would be inappropriate to express a view on the question of whether any aspects of the applicant’s claim are in fact out of time or, if so, whether or not the case is an appropriate one for an extension of time to be granted. These are matters that may need to be addressed if and when raised at a substantive hearing. In my view, in the circumstances of this matter, it would not be appropriate to form a final view on these issues or indeed on any of the potential discretionary considerations, at the permission stage.
I have considered the affidavit filed by the applicant in support of the interlocutory application and I have had the benefit of lengthy and elaborate submissions from the applicant and from senior counsel on behalf of the respondent. I am satisfied that there is a reasonable basis upon which the applicant might establish a right to judicial review. The only order I need to make at this stage is to grant permission to proceed with an action for judicial review against the respondent, as particularised in the statement of claim – being order 1 in the interlocutory application. I so order.[21]
[21] In doing so, I make plain that I have not pre-empted the outcome of any interlocutory applications, including, for example, for further particularisation, that might be made once the respondent were to be formally served.
The matter is to be referred in due course to a hearing before a single judge rather than the Full Court. I have made that determination essentially on the basis that there may be interlocutory disputes to be resolved before the matter can proceed to a hearing and that any hearing that eventuates has the potential to be a lengthy one focusing on a number of factual and evidentiary issues.[22]
[22] Cf; Keogh v Medical Board of SA [2006] SASC 285.
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